Private Law Theory

ABSTRACT
The law of negligence is rife with doctrinal confusion. When addressing negligence claims, courts and scholars frequently analyze and decide the same issue (for instance whether the harm was foreseeable) under more-than-one of negligence’s allegedly independent elements. This article dubs this phenomenon ‘doctrinal bleed’. Although occasional judges and scholars have referred in passing to instances of doctrinal bleed, to date no one has systematically cataloged and analyzed the phenomenon. This article, then, makes two substantial contributions to tort doctrine scholarly literature. First, it carefully disentangles and details doctrinal bleed; in doing so, the article produces surprising and unsettling results. A negligence claim has five elements: existence of duty, breach of duty, but-for cause, proximate cause, and damages. Doctrinal bleed has the theoretical potential to exist between any two of these five elements. Of the ten possible pathways for doctrinal bleed, this article documents the phenomenon in no fewer than seven. No element of negligence stands alone, and most elements confusingly overlap with multiple others. This article also documents doctrinal bleed between defenses and, most jarring, it identifies bleed ‘across the v;’ that is, between defenses and elements of the plaintiff’s prima facie case. Negligence doctrine is far more of a mess than anyone previously believed. Second, this article explores the way in which doctrinal bleed interacts with the three primary normative theories of tort law: Law and Economics, Corrective Justice, and Civil Recourse. In particular, this article shows that Law and Economics as well as Corrective Justice theorists would welcome dramatic revision of negligence law to eliminate doctrinal bleed and to advance their chosen objectives. Civil Recourse theorists, by contrast, heartily embrace the doctrinal elements of negligence as first-order legal and conceptual constructs; consequently, doctrinal bleed presents them with a deeper challenge.

Kades, Eric A, The Prima Facie Case Against Negligence Law’s Prima Facie Case (February 7, 2025).